Deandre Carr, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Deandre Carr, Jr. appeals his six-year sentence for his conviction of sexual misconduct with a minor. He claims the trial court abused its discretion in sentencing him, and he challenges the appropriateness of his sentence. We affirm.

Facts and Procedural History

[2] Thirty-year-old Carr raped the fifteen-year-old male victim in this case and also performed fellatio on the victim. Carr told a police officer that the victim initiated the encounter and that they each had anal sex with the other. The State charged Carr with Level 4 felony sexual misconduct with a minor.

[3] At Carr's bench trial, Carr's cousin testified that when he asked Carr if he raped the victim, Carr denied it, saying, “That boy f***ed me.” Am. Tr. Vol. II, p. 116. Carr testified on his own behalf and stated that nothing happened between him and the victim. Following trial, Carr was found guilty as charged. The court sentenced Carr to six years, with one year suspended to probation. Carr now appeals that sentence.

Discussion and Decision

A. Abuse of Discretion

[4] Carr contends the trial court abused its discretion by relying on an improper aggravating factor in crafting his sentence. Specifically, he challenges the court's determination that the impact this offense had on the victim was an aggravating circumstance.

[5] “[S]entencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. One way in which a trial court may abuse its discretion is when it considers a factor not supported by the record. Id. In such an instance, we will remand for resentencing only if we cannot say with confidence that the trial court would have imposed the same sentence absent consideration of the improper factor. Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App. 2019) (quoting Anglemyer, 868 N.E.2d at 491).

[6] It is important to note first and foremost that although the trial court identified aggravating factors, Carr was sentenced to the advisory sentence, which our legislature designated as the appropriate sentence for the crime. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied. The presumptive (now advisory) sentence generally accounts for the impact the victim suffers as a result of the offense. Hildebrandt v. State, 770 N.E.2d 355, 359 (Ind. Ct. App. 2002), trans. denied. Nevertheless, trial courts “may find the nature and particularized circumstances surrounding the offense to be an aggravating factor,” Gober v. State, 163 N.E.3d 347, 354 (Ind. Ct. App. 2021), trans. denied, if “the harm, injury, loss or damage suffered by the victim ․ was significant and greater than the elements necessary to prove the commission of the offense.” Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012).

[7] Here, the court identified the challenged aggravator by stating: “Impact on the victim of this case. The Court finds that the trauma and harm to the Victim of this case is substantial, as evidenced by both the Victim's testimony at trial in this case, as well as the Victim's statement read to this Court at sentencing.” Appellant's App. Vol. 2, p. 221 (Sentencing Order). During his testimony at trial, the victim “was obviously upset, crying and shaking[.]” Am. Tr. Vol. II, p. 231. His testimony established that the sexual misconduct was initiated while he was asleep, was forcible, and was done without his consent. The nature and circumstances of this crime reveal that a rape occurred, although Carr was charged only with sexual misconduct with a minor. Compare Ind. Code § 35-42-4-1 (2022) (rape, which includes element of force), with Ind. Code § 35-42-4-9 (2019) (sexual misconduct with a minor).

[8] In addition, at sentencing the court considered the victim's letter in which he stated that Carr's misconduct had caused him sleepless nights, anxiety, an inability to trust people, and a fear of being alone with people. Am. Tr. Vol. II, p. 219. While the court did not employ the exact phrase “nature and circumstances,” that appears to be what it considered and there is ample evidentiary support for such an aggravating factor in this case. See Sharkey, 967 N.E.2d at 1078-79 (trial court did not err in identifying harm to victims as aggravating sentencing factor; court relied on victim letter, which described harm beyond what was necessary to prove offense).

[9] Moreover, even assuming the victim impact aggravator was error, it was harmless because the court sentenced Carr to the advisory term for his crime. And, to the extent Carr suggests the court would have sentenced him to something less than the advisory term were it not for the allegedly improper aggravator, the court identified a second aggravating factor that Carr does not challenge on appeal. Accordingly, we can say with confidence that the trial court would have imposed the same advisory sentence even if it had not considered the disputed aggravator.

B. Inappropriate Sentence

[10] Carr argues his sentence is inappropriate given the nature of the offense and his character. Indiana Appellate Rule 7(B) empowers us to revise sentences if, after due consideration, we find the trial court's decision inappropriate in light of the nature of the offense and the character of the offender. C.A. v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. Trial courts are authorized to tailor an appropriate sentence to the circumstances of the particular case, and the resulting judgment receives “ ‘considerable deference.’ ” Prince v. State, 148 N.E.3d 1171, 1173 (Ind. Ct. App. 2020) (quoting Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied). This deference prevails unless “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.’ ” Borroel v. State, 241 N.E.3d 8, 17 (Ind. Ct. App. 2024) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)), trans. denied. However, the appellant need not show that both of these factors independently warrant revision; rather, they are separate inquiries to be balanced. Turkette v. State, 151 N.E.3d 782, 786 (Ind. Ct. App. 2020), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Prince, 148 N.E.3d at 1173.

[11] The advisory sentence is the starting point selected by the legislature as an appropriate sentence for the crime. Borroel, 241 N.E.3d at 18. Consequently, “ ‘the defendant bears a particularly heavy burden in persuading us’ ” that his sentence is inappropriate when the trial court has imposed the advisory sentence. Prince, 148 N.E.3d at 1174 (quoting Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied). Moreover, in our Rule 7(B) analysis, we may consider all aspects of the penal consequences of a sentence, including whether a portion of the sentence is ordered suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

[12] Here, the court found Carr guilty of Level 4 felony sexual misconduct with a minor. A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). The court sentenced Carr to the advisory term of six years and suspended one year of that term to probation.

[13] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Acknowledging that this offense is “disturbing,” Carr states it was no more egregious than any other offense of this type. Appellant's Br. p. 10. We cannot agree. Carr's actions are well beyond the typical sexual misconduct with a minor offense. Carr, who was twice as old as the victim, approached the victim in his sleep, pulled down his pants and underwear, pinned his legs up over his head, and raped him. When Carr was finished, he put his mouth around the victim's penis. The victim testified he “froze up” and that “it was like trying to yell in a ․ nightmare ․ you try to scream but nothing comes out but a little bit of air.” Am. Tr. Vol. II, pp. 53, 72. Carr admonished the victim not to tell anyone. Carr presents no compelling evidence that positively depicts his offense so as to overcome the deference we give to the trial court's judgment.

[14] Our analysis of a defendant's character involves a broad consideration of his qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). And even a minor criminal record reflects poorly on a defendant's character. Prince, 148 N.E.3d at 1174. Here, Carr points out that his criminal history consists of only a single traffic misdemeanor conviction. Yet, Carr's true character is evidenced by his ever-changing account of the incident, his futile attempt to avoid accountability by blaming his crime on the victim, and his lack of remorse. Carr has failed to provide us with substantial virtuous traits or persistent examples of good character that would compel us to override the deference we afford the trial court's judgment, especially in light of the advisory sentence imposed here. See Littlefield, 215 N.E.3d at 1089 (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (stating that to demonstrate sentence is inappropriate, defendant must offer compelling evidence of substantial virtuous traits or persistent examples of good character portraying defendant's character in positive light)).

Conclusion

[15] Based on the record before us, we conclude that the trial court did not abuse its discretion in sentencing Carr and that Carr's advisory sentence with one year suspended to probation is not inappropriate in light of the nature of the offense and his character.

[16] Affirmed.

Najam, Senior Judge.

Judges Brown and Foley concur. Brown, J., and Foley, J., concur.